28 Nov 2015

California Workers' Comp Case Roundup

CALIFORNIA COMPENSATION CASES

Vol. 80 No. 11 November 2015

A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions Denied Judicial Review

CONTENTS OF THIS ISSUE

LexisNexis Online Subscribers: You can link to your account on Lexis to read the complete headnotes and court decisions, en banc decisions, and writ denied summaries.

Supreme Court Compensation Case

Larkin (John) v. The City of Marysville, Lexis

Peace Officers—Regular, Salaried Peace Officers—Volunteer Peace Officers—Maximum Benefits—California Supreme Court, affirming judgment of Court of Appeal, held that Labor Code § 4458.2, which provides that average weekly earnings of peace officers described in Labor Code § 3362 who are injured or killed in line of duty are to be taken at statutory maximum for purposes of determining temporary disability indemnity and permanent disability indemnity, does not extend maximum disability indemnity levels to regularly sworn, salaried peace officers, when California Supreme Court found that…

Appellate Court Compensation Cases

Batten (Margaret) v. W.C.A.B., Lexis

Medical Evaluations—Admissibility—Court of Appeal, affirming WCAB decision, held that medical evaluation from physician retained by applicant at her own expense pursuant to Labor Code § 4064(d) was inadmissible before WCAB pursuant to Labor Code § 4061(i), when Court of Appeal found that...

Stevens (Frances) v. W.C.A.B., Lexis

Independent Medical Review—Constitutionality—Court of Appeal, affirming decision of WCAB, held that applicant’s state constitutional challenges to independent medical review process fail because legislature has plenary powers over workers’ compensation system under California Constitution art. XIV, § 4, and that applicant’s federal due process challenge fails because California’s scheme for evaluating workers’ treatment requests is fundamentally fair and affords workers sufficient opportunities to present evidence and be heard, when Court of Appeal found that…

Appellate Court Cases Not Originating With Appeals Board

Duarte (Virgilio) v. The Vons Companies, Inc., Lexis

Civil Actions Against Employers—Fair Employment and Housing Act—Court of Appeal affirmed trial court’s grant of summary judgment in defendant employer’s favor, when Court of Appeal found that…

Solano v. Beavex, Inc., Lexis

Employment Relationships—Employee v. Independent Contractor—Class Certification—Court of Appeal affirmed trial court’s order denying plaintiffs’ motion for class certification, when Court of Appeal found that…

Vebr v. Culp, Lexis

Homeowners’ Tort Liability—Unlicensed Contractor—Injured Employee—Court of Appeal, affirming trial court’s grant of summary judgment in favor of defendants/homeowners, held that no triable issues of material fact existed in plaintiff’s clams of direct negligence, premises liability, and respondeat superior against defendants, when Court of Appeal found that…

Federal District Court Opinions of Related Interest

Angelotti Chiropractic, Inc. v. Baker, Lexis

Liens—Activation Fee—Constitutionality—Pursuant to U.S. Court of Appeals, Ninth Circuit, 6/29/2015 decision in Angelotti Chiropractic, Inc. v. Baker, 791 F.3d 1075, 80 Cal. Comp. Cases 672 (9th Cir. 2015), reh’g den. 10/18/2015, which, among other things, upheld constitutionality of SB 863’s provisions relating to lien activation filing fee and vacated preliminary injunction issued by U.S. District Court, Central District of California, U.S. District Court, Central District of California issued an order vacating its 11/13/2013 preliminary injunction and granted defendants until 11/9/2015 to reestablish payment system for lien activation filing system pursuant to Labor Code § 4903.06; U.S. District Court, Central District of California, further ordered in relevant part that…

Black (John) v. CorVel Enterprise Comp., Inc.,Lexis

Workers’ Compensation Benefits—Wrongful Denial and Unreasonable Delay of Benefits—Motions to Dismiss Complaint—U.S. District Court, Central District of California, granted defendants’ motions to dismiss plaintiffs’ complaint with leave to amend, when court found that…

Digests of WCAB Decisions Denied Judicial Review

Editorial Board members Francis V. Clifford, Hon. Jacqueline C. Duncan, Susan Hamilton, and James Pettibone recommended the following writ denied cases for summarization in this issue.

Boeing Co., The v. W.C.A.B. (Pasquel, Dennis), Lexis

Medical Provider Networks—Privity of Contract—Location of Provider’s Office—WCAB, in split panel decision, affirmed its prior decision, Pasquel v. Boeing Co., 2015 Cal. Wrk. Comp. P.D. LEXIS 55 (Appeals Board noteworthy panel decision), awarding payment to Griffin Medical Group for medical treatment provided by Bret Powers, D.O., as physician participating in employer’s MPN, when WCAB panel majority rejected defendant’s contention that…

Crawford (Cynthia) v. W.C.A.B., Lexis

Medical Treatment—Utilization Review—Time Deadlines—WCAB, in split panel decision, affirmed WCJ’s finding that defendant timely issued utilization review denying majority of applicant’s treatment requests, including shoulder surgery, pursuant to 8 Cal. Code Reg. § 9792.9.1, when WCAB panel majority found that…

Delgado (Carlos) v. W.C.A.B., Lexis

WCAB Jurisdiction—Professional Athletes—WCAB, reversing WCJ, held that California did not have jurisdiction over applicant professional baseball player’s claim for cumulative injury while playing for New York Mets, based on holding in Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, when WCAB concluded that...

Nashville Predators v. W.C.A.B. (Forsberg, Peter), Lexis

WCAB Jurisdiction—Professional Athletes—WCAB, in split panel decision, held that connection between applicant professional hockey player’s claimed cumulative injury and California was more than “de minimis” as contemplated in Federal Insurance Co. v. Workers’ Comp. Appeals Bd. (Johnson) (2013) 221 Cal. App. 4th 1116, 165 Cal. Rptr. 3d 288, 78 Cal. Comp. Cases 1257, and was sufficient to support WCAB jurisdiction over defendants, when WCAB found that…

Subsequent Injuries Benefits Trust Fund v. W.C.A.B. (Garman, Dusty), Lexis

Subsequent Injuries Benefits Trust Fund—Threshold Requirements—WCAB, reversing WCJ, held that applicant correctional officer who suffered presumed industrial heart attack for which he received stipulated award of 100 percent permanent total disability, with 50 percent apportionment to preexisting heart condition, based on reporting of agreed medical evaluator, was entitled to Subsequent Injuries Benefits Trust Fund benefits pursuant to Labor Code § 4751, when WCAB found that...

Tower Select Insurance Co. v. W.C.A.B. (Chavarria, Javier), Lexis

Insurance Coverage—Policy Rescission—WCAB affirmed Arbitrator’s finding that insurer had coverage for applicant’s employer on date of injury, and held that, because insurer maintained that policy rescission was defense to coverage for applicant’s industrial injury and proceeded to arbitration on that issue, Arbitrator had jurisdiction under Labor Code § 5275(a) to determine whether policy had been rescinded, even though insurer had…

Other WCAB Decisions Denied Judicial Review

Gonzalez (Elvis) v. W.C.A.B., Lexis

Petitions to Reopen Award—New and Further Disability—Evidence Supporting Original Permanent Disability Award—WCAB held that applicant did not show good cause to reopen record for claim of new and further disability, when WCAB found that...

Guillen (Antonia) v. W.C.A.B., Lexis

Employment Relationships—Residential Employees—WCAB denied applicant’s claim for workers’ compensation benefits on grounds that applicant had not worked for homeowners for at least 52 hours in 90 calendar days before claimed date of injury, 8/16/2014, as required by Labor Code § 3352(h) for residential employees to be eligible for workers’ compensation benefits, when WCAB found that…

Hanna Leung Professional Law Corp. v. W.C.A.B. (Luo, Victor), Lexis

Sanctions Against Attorneys—Labor Code § 5813—WCAB affirmed WCJ’s order imposing $500 in sanctions under Labor Code § 5813 and 8 Cal. Code Reg. § 10561 and amended WCJ’s order and imposed sanctions jointly and severally on law firm and individual attorney from same law firm representing applicant in seeking workers’ compensation benefits, when WCAB found that…

Harris (George) v. W.C.A.B., Lexis

Permanent Disability—Apportionment—WCAB awarded applicant HVAC service trainee 65 percent permanent disability, after apportionment, for applicant’s 1/8/2005 injury AOE/COE to lungs/pulmonary, skin (sarcoidosis), and psyche, with permanent disability rating based on opinions from...

Mayorga (Eliborio) v. W.C.A.B., Lexis

Petitions for Writ of Review—Final WCAB Decisions—Court of Appeal dismissed petition for writ of review of WCAB decision because WCAB decision was not final order or decision as required by Labor Code §§ 5900, 5901, when applicant was...

Simon (Joyce) v. W.C.A.B., Lexis

Vexatious Litigant Declarations—Successive Petitions for Reconsideration—WCAB declared applicant to be vexatious litigant within meaning of 8 Cal. Code Reg. § 10782(a)(1), based on…

Sanctions—Petitions for Reconsideration—WCAB held that applicant filed two petitions for reconsideration dated 3/22/2014 and 6/10/2014 that were “frivolous” and “undisputedly without merit” petitions within meaning of…

Whiteto (Troy) v. W.C.A.B., Lexis

Petitions for Reconsideration—Dismissal for Improper Service—WCAB dismissed petition for reconsideration because it was not properly served on all adverse parties and representatives of adverse parties as required by Labor Code § 5905 and 8 Cal. Code Reg. §§ 10850, 10505, and 10510(b), when WCAB found that…